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2001 Supreme(Raj) 446
Rajasthan High Court, Jaipur Bench
Honble J.C. VERMA, J.
Kishan Lal - Appellant
Versus
Smt. Shanti Devi - Respondents
S.B. Civil Misc. Appeal No. 350 of 1990
Decided On : April 23, 2001
A.L. Verma, for Appellant J.C. Jain, for Respondent
Headnote:Indian Succession Act, 1925, Sec. 299, Evidence Act, Sec. 118, C.P.C., Order 3, Rule 1 – Grant of probate – If a party does not appear in the witness box, his power of attorney appears, whether it is a case of no evidence – Held – Power of attorney is competent witness and entitle to appear in the witness box as per provisions of Order 3, Rule 1 and Order 18 of C.P.C. read with Sec. 118 of the Evidence Act unless the Court considers that they are prevented from understanding the question put to them – The question of drawing adverse inference against a party for his failure to appear in Court arises only when there is no evidence on record. (Paras 11,13,20 & 21)
HELD : Whether the general power of attorney holder of a party can be a competent witness on behalf of a party before a Judicial Tribunal or authority has to be answered in the light of Sec. 118 of the Evidence Act and for answering that question the provisions of O.3 Rr. 1 and 2(a) of the Civil P.C. are beside the point and can afford no guidance whatsoever. Giving deposition on oath as a power of attorney holder of a party is not a part of pleadings. It is a part of the procedure for proving a case by examining a competent witness. Who can be a competent witness is indicated by the Evidence Act alone as per S. 118. The power of attorney holder of a party, only on the ground that he holds the power of attorney, cannot be said to be in the category of persons who are incapable of being witnesses as provided by S. 118 of the Evidence Act. Whether such a power of attorney holder has personal knowledge about the matters in controversy may be a question which can be thrashed out by cross- examining him and if it is found that the power of attorney holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be whittled down, but that has nothing to do with the competence of such a power of attorney holder to depose before a court of a Judicial Tribunal as a competent witness. (Para 13)
Power of attorney is a competent witness and is entitled to appear as such. His statements in the court cannot be ignored or it cannot be said that the statement of such a witness shall not be read in evidence only because of the reason that he had appeared as power of attorney and in case the parties to suit i.e. plaintiff or defendant does not choose to appear as a witness in witness box it cannot be said that the evidence of the power of attorney who had appeared in the capacity as holder of power of attorney is not to be read at all. His evidence is to be evaluated as per his deposition before the court and in case the court finds that witness/evidence of such power of attorney does not depose a confidence the court is at liberty to evaluate the same. There is no jurisdiction with the court to say that the evidence of such person shall not be read at all and that the plaintiff must appear in the case in her support. The order of the trial court cannot be set aside. (Para 20)
(2). One Smt. Dakha had died on 31.12.1977 leaving certain property. Application under Section 276 of the Indian Succession Act was filed by the respondent with the prayer that Smt. Dakha had executed a registered Will in her favour on 29.9.1977 and the probate letter be issued to her in connection with the property in question. Application was opposed by the present appellant with the prayer that he is relative of the deceased Dakha and no Will was executed on 29.9.1977.
(3). The application of probate was allowed on 28.5.1990 which is challenged in the present appeal. It is the contention that as per the statement of PW-1 Kanhaiya Lal, Smt. Dakha was not in senses when she had executed the Will and when she had put her thumb impression. It is also the contention that Umrao Singh had not been produ- ced. It is stated that Shanti Devi herself did not appear in the court. Her husband had appeared and, therefore, an adverse inference should have been drawn against her.
(4). The trial court had framed the required issues.
(5). On issue No.1 it was held by the trial court that the Will Ex.1 was proved by PW-1 Kanhaiya Lal, PW-2 Kailash Narain, PW-3 Gainda Lal which was registered on 29.9.1977 before the Sub- Registrar, witnessed by Umrao Singh and Kanhaiya Lal. Even though Umrao Singh had not been produced, but it has been proved by the witness Kanhaiya Lal and PW-2 Kailash Narain who had stated that at the direction of Smt. Dakha, Will Ex.1 was executed by Kailash Narain which was entered into his register Ex.2. Smt. Dakha was identified by Kanhaiya Lal and Gainda Lal and that Smt. Dakha had executed the Will which was got registered at the instance of Smt. Dakha. PW-3 Gainda Lal is the husband of Smt. Dakha who has confirmed these facts. The trial court had found that the Will had been proved to have been executed in favour of respondent Shanti Devi.
(6). Per contra, learned counsel for the respondent submits that the Will was executed a few months before the death of Smt. Dakha and she was at the time suffering from descentry and was not in senses. The defendants version was supported by Ratan Singh DW 3 and Gokul Chand DW -2, however, it was admitted by the defence witnesses as well that even at the time of death Smt. Dakha was living with Shanti Devi where she was taking her meals as well.
(7). Original record has been seen.
(8). Only contention of the learned counsel for the appellant is that for the reason that Shanti Devi herself had not come in the witness box, but her husband Gainda Lal was produced as PW-3, therefore, it is to be presumed that there was no evidence at all as the husband even if he may be having power of attorney in his favour by Shanti Devi, but he can only be treated as witness and not a party.
(9). The only question being raised is that in the circumstances if a party does not appear in the witness box, his power of attorney appears, in such situation, whether it is a case of no evidence.
(10). Reliance is placed on the decision of Bombay High Court in the case of Humberto Luis & anor. vs. Floriano Armando Luis & Anr. (1), and Parikh Amratlal Raman Lal Trustee and Administrator of Sanskrit Pathshala Institution and others vs. Rami Mafatlal Girdharilal and others (2).
(11). The Bombay High Court in the case of Humberto Luis (supra) while adjudging the competency of the witness i.e. holder of power of attorney, after discussing the provisions of Order III Rule 1 and Order XVIII CPC r/w Section 118 of the Evidence Act which clearly provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answers to those questions, by the tender years, extreme
